“Treason doth never prosper: what’s the reason?
Why, if it prosper, none dare call it treason.”
If John Harrington’s 17th-century aphorism is valid, the converse may also be correct. When political change — often called treason by those in power — does not prosper, all are free to call it treason.
January 15 is Martin Luther King, Jr.’s birthday. This year it falls on the Monday designated to observe it. Recognizing King’s accomplishments with a holiday is certainly appropriate and I do not mean to diminish its importance or even add another view. There are thousands who will acknowledge him this day, No question that King was a hero.
Little known outside the few states that recognize it, Robert E. Lee’s birthday, January 19 falls on the Friday of that week, and, in some places, it is observed on the same day as King’s. Lee, unlike King, has achieved pariah status in the national media (and with some in the professoriat) only after it was recently discovered— nearly a century and a half after his death —he could be used to advance a wedge issue in our national conversation. Many cities and other places have removed or propose removing statues of Lee and other Confederates, and changed names of streets, schools, and other locations. Here in Dallas, an equestrian statue of Lee was removed from its eponymous park— at great expense to the taxpayers— by a process that would have pleased Orwell’s Big Brother, Chicago’s late mayors Daley (père et fils), or (perhaps risking a modicum of overstatement) Chairman Mao.
One rhetorical device popular among some is denouncing Lee as a traitor. Treason, of course, historically has been regarded as the most odious offense. Dante, for example, opined that traitors were condemned to the lowest circle of hell, where Judas Iscariot and Marcus Brutus suffer for eternity. Treason was punished in Medieval and early modern Europe by the offender being hanged, drawn and quartered or broken on the wheel, if male, or burning at the stake, if female.
What actually constitutes treason has always been problematic. Historically, it was attempting, or even wishing, to kill one’s sovereign, almost always a monarch. At a time when sovereigns were considered God’s lieutenants on earth, such an act would be tantamount to deicide.
The common law put treason into two categories, petit treason, generally adultery (if committed by the wife); and high treason, committed against the monarch, the state. High treason could extend so far as to merely wish ill on the king, or even what we would consider legitimate dissent in this country. Indeed, accusations of treason were used to silence dissenters and reformers well into the modern era.
The Founders who drafted our Constitution were mindful of this abuse, and in Article III limited treason against the United States to “levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause does not define treason, but limits it to those acts. It leaves out an essential element of treason. As noted in Blackstone’s Commentaries and other authorities, the offender must have allegiance to the offended entity. Treason against any one of the several states is similarly limited by their constitutions and laws.
So, was Robert E. Lee guilty of treason; a traitor?
Neither Lee, nor any other Confederate leader, soldier, or citizen of a secessionist state was ever tried for treason. Jefferson Davis was indicted on that charge, but the case was ultimately dismissed. The Supreme Court has never ruled one way or the other in that case, or any other Civil War case.
But could they have been so charged and convicted under the Constitution and law?
That is unlikely. From the beginning and to this day, Americans, other than resident aliens, are citizens of two sovereigns: the United States and the state in which they reside. Until the 14th amendment was ratified, it was not clear which came first. Was a citizen of the United States thus because he was a citizen of a state, or vice versa?
The first inquiry is whether Robert E Lee levied war against the United States. The Constitution and the enabling statute used the plural form. If the seceding state remained in the union, as President Lincoln maintained, then the Confederate armies only waged war against some of the states. That appears to be one of the reasons Southerners referred to the “War Between the States”rather than the Civil War. It would be absurd to maintain that the Confederates levied war against their seceding states. So the war was against not all, but only the states remaining in, not those attempting to leave the Union.
The seceding states did actually leave the Union, which is what the reconstruction Congress held when it readmitted each of the former Confederate states during Reconstruction. The Confederacy was given the status of a belligerent under international law, although never recognized de jure or de facto. One of the belligerents was attempting to be independent of the other, analogous to War of Independence waged against Great Britain fourscore and several years before.
Regarding the element of allegiance, prior to ratification of the Constitution the several states were wholly sovereign. To be a citizen one had to be the citizen of a particular state. Did the Constitution change that? Until the 14th Amendment was ratified, it does not appear that it did. The Dred Scott case in 1857 held that a slave was not a citizen. While that decision may be morally repugnant by our contemporary standards, it was legally and Constitutionally sound at the time. Congress recognized the decision was so when it proposed the Amendment.
When Robert E. Lee commanded armies constituted under the Confederacy, of which his home state of Virginia was part, he was a citizen of Virginia. If Virginia left the Union he was no longer citizen of the United States. He owed allegiance to Virginia and the Confederacy his state was part of. Thus, Lee could not be a traitor to the United States of which Virginia was no longer a member. Many historians and other commentators have maintained that whether a state could secede was settled in the negative by the Union victory. Even if it was, it was ex post facto and never ensconced in positive law either by an appellate court decision, statute, or Constitutional Amendment. This controversy remains purely metaphysical.
Lee, and the other Confederate leaders were formally acknowledged by Congress to have lost their United States citizenship upon secession, and had to apply for its restoration under laws passed during Reconstruction. Lee did so apply, but he died before his application could be acted upon. Lee’s citizenship was finally, posthumously, restored in 1975 by a Congressional Joint Resolution during President Gerald Ford’s administration.
What about Lee’s oath of office as an officer in the United States Army? I recall one of the Yeoman Warders serving as a guide to the Tower of London remarked to me that George Washington was a traitor because he had been an officer in the British Army prior to the Revolutionary War. Lee, like Washington, had resigned his commission prior to taking their commands. Did resignation release him from his oath? This question may not be answerable by any legal authority. Common sense, however, suggests that resignation of an office or other position means one is no longer obligated to perform the duties under that office. Logically Lee was released from that oath.
Robert E Lee did not commit treason. The cause he served as a Confederate leader was, on a number of levels, a flawed one. But he, like many others at the time, both North, South, and West, believed his higher duty was to Virginia and its allied states. He served honorably, and, at the end, he knew that Virginia and the Confederacy had lost and acknowledged that fact. He resisted any exhortation to continue the war as a guerrilla. He became a civilian and spent the last five years of his life seeking reconciliation between the sections. Lee’s final words to his soldiers at the end of the war were “furl the flag, boys.”
Over the next 100 years, many did not, but we can take comfort that most by now have done so. For that, we can credit, among others, Martin Luther King, Jr.
Sources and Authorities:
Case of Davis, 7 F. Cas. 63, No. 3621A (Circuit Court D. Va. 1867)
Cramer v. U.S., 325 U.S. 1 (1945)
U.S. v. Cathcart, 25 F. Cas. 344, (Circuit Court D. Ohio) (1864)
Cynthia Nicolett, “Did Secession Really Die at Appomattox?: the Strange
Case of U.S. v. Jefferson Davis,” 41 University of Toledo Law Review 587 (2010)
Ian Mitchell, “The Trial of Jefferson Davis and the Treason Controversy,” 39 Northern Kentucky Law Review 757 (2012)
Willard Hurst, “Treason in the United States,” 58 Harvard Law Review 806 (1945)
IV Blackstone’s Commentaries, Ch.6
18 U.S. C. § 2381
Jay Winik, April 1865, (Harper Collins 2001)